about to garnish... what should I do?

[lundungurl]

Hello all, In september of last year I was served (my daughter signed for it) with a summons to appear for small claims on a $1,500 claim from asset recovery group. I didn't find out about it until a week or so ago because the summons was tucked away in a stack of papers. Thats when I pulled my credit report and found it wasn't listed on there as a judgement and the CA wasn't listed either. So today I called the courthouse and was told it's in the process of garnishment. After that devastating news I called the CA to try and work ot a payment plan. They said no and that the garnishment should have started in December and would be valid until March 14th of this year. She was curious as to why the garnishment hadn't started yet so she called my employer and then called me back to say the paperwork had been forwarded to corporate payroll and that she would forward it again. She also told me it would be 25% of my pay out of each check. Is there anything I can do at this point? The CA said I could call them back on March 14th to make arrangements to pay the balance since they are only going to get about $600 between now and mid March. Should I try and write a letter to the judge? Stressing out about this big time!!!

[RobertEG]

To garnish pay, they have to secure a court order for its execution.  You should have been served notice of the proceeding.

Apparently, they secured the execution of the judgment at the time of the hearing that resulted in the judgment itself, so it appears you may have received adequate notice.

I would go to the courhouse and review the proceedings of the court.  When and how was the order of execution of the jugment made?

[dharalex]

At this point, there is nothing you can do other than pay the full amount directly to the creditor since they don't want to settle for an arrangement. They have the upper hand because they already have the judgment and garnishment awarded. From personal experience, do absolutely everything in your power to get the full amount which may be higher due to court costs, and pay the OC. Otherwise, you get garnished, then the satisfied judgment will appear on your report. I would call daily them daily to try to come up with an acceptable plan. Edited: I say this with the assumption you have been properly served and judgment has been entered

[lundungurl]

Ok, I just found this at the gov website for my county. The important part is in red and states that it must be given to someone who resides at the address with the defendant. Should I send them an e-mail in the morning outlining this error on their part and try and re negotiate? I'm willing to pay the full amount through payments, I just don't want to be garnished: I think I can have it dismissed because of this but I don't want it cropping back up in a year or 2. I might try to negotiate a motion to vacate after it's paid off. What do you guys think?

"Service of Claim and Notice of Claim:

The plaintiff must notify the defendant(s) that a case has been filed. This is known as service. There are four options for service; personal, substituted, office or certified mailing. Service can be made by the sheriff of the county where the defendant(s) can be found; by any competent person 18 years of age or older who is a resident of the State of Oregon and is not a party to the action nor an officer, director, employee of or attorney for any party, corporate or otherwise; or by certified mail. If you chose to have the sheriff serve and defendant(s) will be served outside of Clackamas County you will need to contact the appropriate sheriff office in the area you wish to serve:

1. Personal Service: Personal service may be made by delivery of a true copy of the Claim and Notice of Claim to the person you are serving.

2. Substituted Service: Substitute service may be made by leaving a true copy of the Claim and Notice of Claim at the dwelling house or usual place of abode of the person to be served with any person over the age of 14 years who resides there. If substitute service is made, the plaintiff shall mail a true copy of the notice of claim to the defendant at his/her usual place of abode together with a written statement of the date, time and place at which substitute service was made. This is to be done by first class mail (not certified mail). An affidavit or certificate of mailing must then be submitted to the court showing the date that it was mailed.

[dharalex]

My first thought is you said your daughter signed for it. Does she not live there or meet the age requirement? If you consider yourself not served properly, you must enter a motion to vacate now, after payment is much more difficult. Not impossible. To vacate basically means you get a do over and can have an opportunity to plead your case in court. D you have the financial ability to hire an attorney? I, personally, would do that. Your garnishment has reached your employer, so it will take affect any minute. I think the O. May respond better to an attorney. Regardless, if you believe you were not served correctly, the motion to vacate should be done now and not after the judgment is satisfied.

[dharalex]

I take back the attorney part...maybe. I remembered this is small claims court! Everything else I still think is solid advice. I went through this last Sept, and I don't want you to make the mistakes I made....garnishment sucks, too!

[lundungurl]

Thanks for replying. My daughter is 19 and she does not live with me. She was over visiting other family members in the house when she heard a knock on the door about 8 or 9pm. I was not home as I work graveyard shift. So, you don't think I should contact the CA again? I know if I get a motion to vacate, they can file again so I want to pay it so I don't have it hanging over my head any more

[dharalex]

Yes! Call first thing and ask what can be done to stop the garnishment? If you can offer full or large payments of 25% of balance for 4 mos, anything to get them to listen. They can withdraw the garnishment. If they are willing, try to get them to dismiss the case with your payment in full. You do not want a satisfied judgment on your cr.